September 11th and the Future We've Built

A decade ago, when the Twin Towers came crashing down, and while the rubble smoldered still, calls arose for a radical reinvention of the United States’ approach to counterterrorism.Collective confidence in the impermeability of the borders and boundaries, natural and man-made, that stood between national territory and foreign threats quickly faded.Those bulwarks had been overrun, to tragic consequence.Politicians dismissed probing questions about root causes by pointing to the attackers’ purportedly visceral hatred of the American way of life.Experts and officials focused on immediate causes, scrambling to identify the intelligence gaps, blinders, and barriers between the branches and agencies of government that were thought to have prevented the detection of such a grave threat.In those heady days, many believed that a fundamental recalibration of the supposed balance between liberty and security was in order.

Today, the notion that the government needs all available tools to combat terrorism reigns as something of a sacred truth, accepted by the mainstream, touted by politicians and pundits alike, unquestioned even in many academic and activist circles.The limits of what is legally available have of course been pushed and stretched in countless ways, known and secret.Barriers defining the roles of government agencies and separating them from the people they are tasked with protecting have collapsed, while a cohesive critique of the government’s expansive toolbox—an analysis that captures its full domestic and international sweep as well as the costs and risks associated with the very existence of such a wide range of options—has failed to take root in the national conversation around security issues.

When a Somali man was captured abroad by the United States, interrogated incommunicado and without access to counsel on a warship in international waters for nearly three months, then finally rendered to trial in New York City, a Justice Department official extolled the virtues of a system that offered the government “flexibility” between its military and criminal justice options.Depending on the case—and the strength of its evidence—the U.S. government can now toggle between indefinite military imprisonment without a criminal trial, a trial by military commission, and a full trial before a regularly-constituted civilian court (as an aside, the choice arises only where the government has decided to arrest someone overseas, instead of targeting them for extrajudicial execution using a CIA or military-operated drone).It is well worth questioning whether this flexibility is such an uncontroverted good.

Much ink has been expended on detailing the significant shortcomings of the military commissions at Guantánamo Bay and, although considerably less critical attention has been paid to alarming trends in terrorism cases in civilian court and in the adjudication of habeas corpus petitions arising from indefinite military imprisonment, the point here is not to dwell on the imperfections of those individual systems, lest this be confused with a narrow call for improvement.Flawed though those systems certainly are by design or in the way they operate in this context, analyzing them in isolation overlooks their combined effect.The very existence of the government’s discretion between systems, its ability to choose one, the other, or the third, depending on the quality of its evidence, against non-citizens apprehended overseas, is itself one of the more troubling architectural features of the post-9/11 counterterrorism edifice.A legacy of the Bush era, it has been carefully preserved, developed and entrenched by the Obama administration.

The flexibility to toggle arbitrarily between judicial systems effectively institutes and normalizes a sliding scale of rights and safeguards.Where there is little concrete evidence or where concerns about admissibility exist, the U.S. government can indefinitely imprison an individual in military custody at Guantánamo subject only to the requirement of satisfying what courts, unhappy with the high rate of detainee legal victories, have gradually narrowed to a minimal evidentiary showing in federal habeas corpus proceedings (if the U.S. government dumps someone at Bagram Air Base in Afghanistan, it is not even required to make that showing).When there is a little more evidence regarding certain kinds of alleged activity, the government can bring its case before a military commission, where it can cut corners and does not have to abide by the rules that define criminal proceedings in regularly-constituted civilian and military courts.The government, rather predictably, maintains that the commissions afford “allofthecorerightsandprotectionsthatarenecessarytoensureafairtrial,” as if implying that, beyond the core safeguards the government has deigned to bestow, other protections are merely secondary, disposable rights that can be set aside when the evidence is relatively weak but a conviction must be the outcome all the same.Finally, if it is more confident in the strength of its evidence, the government can proceed in regular court, where draconian sentence enhancements are the norm in terrorism cases, reserving the ability, however, to first sequester and interrogate a suspect in military custody for a prolonged period of time before informing him of his rights or allowing him access to a lawyer.

So far, only non-citizens who were captured abroad (and were Muslim) have been subject to all three possibilities, but it does not require great leaps of imagination to see that this scheme is susceptible to expansion.When Umar Farouk Abdulmutallab, the alleged underwear bomber, was arrested in the United States, while still aboard the plane that he is accused of having targeted, after it landed from an overseas flight, he provided the latest—and most literal—proof of the homeward migration of many war on terror practices.Conservative politicians and activists were quick to demand his trial by military commission.Since then, laws have been proposed in Congress to take away responsibility from law enforcement agencies, putting all terror suspects into immediate military custody.By placing civilian law enforcement on a single continuum with military options, the government has set the stage for the (further) militarization of American society.Though perhaps not a harbinger of immediate doom and totalitarianism, the melding of civilian and military affairs may later be seen as an ominous watershed.

Viewing U.S. war on terror policies and practices ranging from the international to the local as part of a unified spectrum is far more instructive than subscribing to the artificial cleavage that has been erected between those dimensions in some segments of the rights community.It is consistent, to boot, with the U.S. government’s own holistic approach.And in that all-embracing light, one leitmotiv that emerges starkly is that barriers are collapsing across the spectrum, merging and melding heretofore distinct functions, and permitting the use of tools in ways that would not have been tolerated a decade ago (or perhaps would not be brooked even now, if used against non-Muslim communities).

The prominence of predatory—often called preventive or preemptive—terrorism investigations and prosecutions in the United States today reminds of dystopic science fiction.It is a present-day version of Philip K. Dick’s Minority Report where the fantasy predictive technology has been replaced with an investigative focus on supposed precursor (and often constitutionally-protected) acts and on perceived ideological affinities that frequently border on thought crimes.In these predatory cases, the authorities step over into an unusually active role, sending in agents provocateurs and informants to instigate and promote plots.What often follows is an almost admirable example of vertical integration, with government agents supplying the idea, the plan, the encouragement, and the material means for execution.To borrow once more from the rich realm of fiction, think of the film Donnie Brasco, only with Johnny Depp actively encouraging and enabling mob killings.While those methods have been concentrated on Muslim-American communities, one must ask if a similar campaign in any community in the United States would not yield the same outcomes.The premise that Muslim communities in the United States are vulnerable to what the latest White House policy paper on the topic has termed “radicalization to violence,” though uncritically accepted in many circles, lacksempiricalandsocialscientificsupport.

The federal government now deploys an estimated—and unprecedented—15,000 informants across the land.As of 2008, the FBI’s Domestic Investigations and Operations Guidelines permit “assessments,” where the agency can spy on anyone, without suspicion of criminal activity.Department of Justice data shows that in the first four months after the new rules were instituted in 2008, agents launched 11,667 “assessments.” “Sneak and peek” warrants under the USA PATRIOT Act were issued 2,332 times between 2006 and 2009, but only 1 percent of those were used in terrorism-related cases (most were for drug-related investigations).And even local agencies are overstepping their traditional and, arguably, legal confines, with the NYPD reportedly relying on CIA assistance in some of its local as well as its far-flung, extra-jurisdictional investigations.The price of these parapet-shattering measures should not be quantified solely in dollars.A far steeper price has been paid in liberty.It can be counted in the double-digit sentences and life-terms doled out to the defendants, and it can be measured in the devastating impact this approach has had on targeted communities’ sense of security and stability in their adoptive homeland.

A decade ago, not a week after the attacks, I wrote about feeling “dispirited by … signs of our country losing its bearings.”I have learned since then that my response was rooted in what was perhaps an overly idealized view of national history.Misguided actions and reactions by government and society may fairly be characterized as a norm.But it is difficult to shake the thought that, in this historical moment, we are witnessing a paradigm shift.

On one level, we have seen avastinvestment by the intelligence-military-industrial complex in domestic and international wars on terror.A sprawling infrastructure—in the ideological as well as the material sense—depends on the Muslim terror threat.By keeping that specific threat narrative alive, this immense system helps ensure its own survival.But the self-fulfilling prophecy only forms part of the portrait.The expansive infrastructure of the wars on terror has spawned ideologies and approaches that wield considerable transformative potential themselves on a systemic scale.The CIA and NSA are now employed domestically to perform policing functions while, overseas, they mete out increasingly military measures, identifying human targets and operating drones to drop bombs in so-called “kinetic” operations.At the same time, politicians and a segment of the public clamor for a greater military role in domestic adjudicatory and law enforcement matters, promoting the use of military commissions, and pressing for mandatory military custody over domestic terrorism suspects.

These trends are not indicia of a temporary crisis; they evince societal transformation of a deeper order.The “whole toolbox” approach, and, critically, the near-absolute consensus around affording the government full discretion, translate to an existential threat not only to the rights and entitlements of those individuals and communities who find themselves in the crosshairs—and those victims must be mentioned first and often—but also, ultimately, to the administration of justice, to freedom, and to the very vitality and openness of American society.

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Ramzi Kassem is Associate Professor of Law at the City University of New York School of Law. He teaches national security law and, with his students, represents Guantánamo and Bagram prisoners before federal courts and military commissions. He also supervises the CreatingLawEnforcementAccountability & Responsibility (CLEAR) project at CUNY School of Law, which works to address the unmet legal needs of Muslim, Arab, South Asian, and other communities in New York City that are particularly affected by national security and counterterrorism policies and practices.

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